Touita v. Canada (Minister of Citizenship and Immigration), 2005 FC 543

                                                                                                                                  Date: 20050421

                                                                                                                      Docket: IMM-6351-04

                                                                                                                        Citation: 2005 FC 543

BETWEEN:

                                                         WAFA EL JAJI TOUITA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

de MONTIGNY J.

[1]                This an application for judicial review of the decision of the Immigration Appeals Division (IAD) of the Immigration and Refugee Board (IRB), in which the IAD found that it lacked the jurisdiction to hear the applicant's appeal, based on sections 192, 196 and 64(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).

BACKGROUND

[2]                The applicant is a Canadian citizen, who married Mr. Abdul Kader Touita in 1997. They have four children, all born in Canada. She applied to sponsor Mr. Touita on December 22, 2000, and Mr. Touita filed an application for permanent residence in Canada.

[3]                Mr. Touita was born in Algeria on March 30, 1963. He was admitted to Canada as a visitor on January 9, 1994. On December 11, 1995, the Refugee Protection Division (RPD) determined that Mr. Touita was not a Convention refugee or person in need of protection. That decision was based primarily on Mr. Touita's assertion that he was a member of the Front Islamique du Salut (FIS).

[4]                The RPD undertook a careful analysis of the FIS, and found that Mr. Touita was not a convention refugee, as he was a person described under Article 1(F)(a) of the 1951 Convention on Refugees. This provision states clearly that the Convention does not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a crime against peace, a war crime, or a crime against humanity. On May 7, 1996, this Court dismissed Mr. Touita's application for leave in relation to that decision of the RPD, because of the applicant's failure to file a record.

[5]                It is worth noting that the applicant now claims, in her affidavit supporting this application for judicial review, that her husband has never been associated with the FIS and that he made up that story on the advice of the lawyer who was representing him for his refugee claim.

[6]                On January 29, 1998, the applicant filed an application for a ministerial exemption to allow his application for permanent residence to be processed in Canada. This application was rejected on July 3, 1998, on the basis of insufficient humanitarian and compassionate considerations.

[7]                On October 23, 1998, the IAD allowed the Minister of Citizenship and Immigration's application to dismiss the applicant's appeal because the IAD lacked jurisdiction to hear the appeal as a result of the decision of July 3, 1998, not to grant him an exemption. In addition, on November 4, 1998, the Federal Court dismissed the application for judicial review in relation to the decision of July 3, 1998.

[8]                On March 5, 1999, the applicant filed another immigrant visa exemption application, which was refused on March 11, 1999.

[9]                As previously mentioned, the applicant applied to sponsor Mr. Touita on December 22, 2000, and Mr. Touita filed an application for permanent residence on April 10, 2001.

[10]            The visa officer in Damascus, Syria, requested that Mr. Touta attend an interview in Damascus. Mr. Touita communicated, through counsel, that he would not be able to attend on the proposed date (July 25, 2001), as he was awaiting a passport, as well as the birth of one of his children. The visa officer proposed an alternative date, September 25, 2001, to which Mr. Touita also replied, through counsel, that he was still awaiting a passport from Algeria, without which he could not travel.

[11]            It appears that the visa officer never received that second letter. Since Mr. Touita had been informed that if he did not attend the September 25, 2001, interview, he would be assumed to have abandoned his application, the visa officer came to the conclusion that he came within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, 1976, in that he had not fulfilled or complied with the provisions of the Act and the Regulations. In addition, he also considered that he was inadmissible by virtue of paragraph 19(1)(j) of the Immigration Act, 1976, which excludes persons who there are reasonable grounds to believe have committed crimes against humanity. The visa officer reached that conclusion on the basis of the previous decision of the RPD.

[12]            On November 15, 2001, the appellant filed an appeal pursuant to s. 77(3) of the Immigration Act, 1976 to the IAD against the refusal of the sponsored application for landing in Canada made by her husband. The IAD released its decision on June 21, 2004, and dismissed the appeal for lack of jurisdiction. That decision is now the subject of this application for judicial review.

DECISION UNDER REVIEW

[13]            The IAD decided that it did not have jurisdiction to hear Mr. Touita's appeal, on the basis of sections 64(1), 190, 192 and 196 of the Immigration and Refugee Protection Act. These provisions read as follow:

[14]            The IAD also found that section 64(1) of IRPA applied to Mr. Touita by virtue of section 320(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which reads:

[15]            Relying essentially on the reasoning adopted by my colleague Justice Phelan in Williams v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 814, the IAD determined that it did not have jurisdiction to hear this appeal since section 196 of the IRPA applies to sponsorship appeals and the applicant is a person referred to in subsection 64(1) of the IRPA.

[16]            The IAD was of the view that the spirit of the IRPA is clearly intended to limit appeal rights in comparison to those that existed under the former Act. Had Parliament intended otherwise, it would have said so explicitly.

[17]            Moreover, section 196 must be interpreted consistently with the objects of the legislation and the intent of Parliament. These objectives are set out in paragraph 3(1) of the Act, and include family reunification and the safety of Canadians. Since section 64 is clearly focussed on the objectives of safety of Canadians and the security of Canadian security, and since section 64 is so closely linked to section 196, the IAD concluded that the latter provision was designed to put appellants, including sponsors, under the provision of the new legislation and to limit the opportunity to continue appeals under the former Act.

[18]            Finally, the IAD found further support for its interpretation in reasoning that if section 196 did not apply to sponsorship applications, it would mean that permanent residents subject to removal orders and subject to section 64 would be treated less favourably than persons who have no status in Canada.

ISSUE

[19]            Should section 196 of the IRPA be interpreted as to encompass all appeals, including those made by sponsors to the IAD pursuant to section 77 of the former Immigration Act?

ANALYSIS

[20]            This is yet another case raising, once more, the difficult question of whether section 196 of the IRPA must be interpreted as to discontinue sponsorship appeals filed before the coming into force of that Act. I have canvassed the various decisions from this court dealing with this issue and carefully considered the arguments put forward by proponents of both sides, and have come to the conclusion that the better view is that of Mr. Justice Phelan in Williams v. Canada (M.C.I.), [2004] F.C.J. No. 814, subsequently followed and expanded upon by my colleagues Justice Gauthier, Mactavish and Martineau respectively in Canada (M.C.I.) v. Bhalrhu, [2004] F.C.J. No 814, Kang v. Canada (M.C.I.), 2005 FC 297, and Alleg v. Canada (M.C.I.), 2005 FC 348.

[21]            With the greatest of respect for the contrary view expressed in Canada (M.C.I.) v. Sohal, [2004] F.C.J. No. 813, I find that section 196 must be taken to encompass sponsorship appeals, considering the wording of the section itself, the relationship between that section and other sections of the Act, and in particular section 197 and 64 and the object of the IRPA. Read in the overall context of the overall scheme of the Act, this interpretation seems to me to be the most compelling and to best reflect the intention of Parliament.

[22]            As a result, I have no alternative but to dismiss this application for judicial review. It is true that the facts underpinning the appeal to the Immigration Appeal Board are somewhat troubling, but Parliament has not provided for any exception, either in the context of section 64 or of section 196, when a person has been found inadmissible on grounds of security, violation of human or international rights, serious criminality or organized criminality. The application of a legislative provision, once properly interpreted, cannot vary according to the facts of each case; otherwise, there would be no certainty in the law.

                                                                                                                        (s) "Yves de Montigny"          

Judge

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-6351-04

STYLE OF CAUSE:               WAFA EL JAJI TOUITA v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       March 22, 2005

REASONS FOR ORDER:                de Montigny J.

DATED:                                              April 21, 2005

APPEARANCES:

Ms. Silvia R. Maciunas                                                                                    FOR THE APPLICANT

Ms. Marie Crowley                                                                                     FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Silvia R. Maciunas

Ottawa, Ontario                                                                                              FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario                                                                                          FOR THE RESPONDENT